This blog is the first in a series on the amendments to the Chinese constitution.
This blog is about an important affair in today’s China: the set of 21 amendments made to China’s Constitution in March 2018. It will interpret the political and practical implications of two high-profile amendments: 1) the constitutional change to the term limitation on the Presidency, which is the head of State; and 2) the constitutional inception of the State Supervisory Commission (“SSC”), which is the highest national supervisory body. It will do so in two dimensions. One is a textual reading of what has been amended in the Constitution. The other goes beyond textual aspects, explaining what changes these alterations imply. Where possible English translations to the text have been provided in the links.
Ceremonial Nature of Chinese Presidency
As the fifth major constitutional amendment made since the adoption of the current Constitution in 1982, it has been widely observed, discussed, and analysed from different perspectives inside and outside China. As far as the amended clause on the Presidency is concerned, I have seen a prevalent inaccuracy in English language news reports and commentaries – be it the over-interpretation of the political relevance of this constitutional change, or the cherry-picking statement of its practical relevance. For example, the first ten results of a Google search of three simple words ‘China constitution amendment’, makes my point clear.
I have been asked on various occasions about the removal of the part from Article 79 in the Constitution that reads: ‘the term of office of the President and Vice President of the People Republic of China … shall serve no more than two consecutive terms’. To understand the political and practical implications of this amendment, it is indispensable to know something of the political structure of the Chinese Government. Next, we must also know something of the composition of China’s decision-making authorities.
Constitutionally, China’s political structure is a multi-party one in which the Communist Party of China (“CPC”) plays the leading role and other political parties play the consultative and cooperative roles, as laid down in paragraph 10 in the Preamble of the Constitution. It remains unchanged throughout the five constitutional amendments, respectively in 1988 (with two amendments), 1993 (with nine), 1999 (with six), 2004 (with 14) and the most recent one.
Under the existing political structure, the Head of the CPC, or in Chinese terms the ‘General Secretary’, is ex officio the person who exercises the most authoritative decision-making duty after being elected by the CPC Central Committee (article 22). This institutional design of the highest decision-making authorities in the government is colloquially known as the three-in-one leadership, meaning that the same person holds three positions at the same time: the CPC General Secretary, State President, and Commander-in-Chief of the Chinese Army. This point was aptly made by the spokesperson of the drafting committee of the constitutional amendment of the National People’s Congress (“NPC”).
To put it differently, China’s Presidency is largely a ceremonial position, which one can say resembles the President of Germany. The power of China’s Presidency includes that of promulgating statutes, conferring State medals and titles of honour, or proclaiming a state of emergency (article 80). Taking Xi Jinping, the current Chinese President as an example, his preponderance in political strength (in the decision-making sense) does not come from his capacity as Head of State, but that of the CPC. In short, as long as there is no term limit on the General Secretary in the CPC Constitution, having or removing the term limit on China’s Presidency is not practically important.
Instituting Supervisory Commissions
Now let’s move to the SSC, with which I believe any vigorous forward-looking observer should be concerned. Half of the recently adopted amendment clauses are about the establishment of the SSC. It is, therefore, reasonable to carefully read the constitutional amendments insofar as this new State organ is concerned.
A special section entitled ‘The Supervisory Commissions’ has been added to Chapter III on ‘The Structure of the State’ of the Constitution, in which the status, personnel formation, power, duty, and institutional balance with adjudicatory organs, procuratorial organs, and law enforcement organs of the imminently devised supervisory commissions are specified in five new articles (articles.123 to 127).
To make sense of this constitutional change, we must first know something of China’s State power. It is then necessary to outline the previous supervisory exercises of the government. Horizontally, the State power is divided into five (formerly four) branches under the NPC, which is the highest authority of the State and the national legislature:
The first: the State Council as the Central Government executes national administrative duties; the second and third; the Supreme People’s Court is the highest adjudicatory authority and the Supreme People’s Procuratorate is the highest procuratorial authority carrying out judicial duties; the fourth; the Central Military Commission is the highest military authority with the responsibility of commanding the entire armed forces; the fifth; as of this March, the SSC is now the highest supervisory authority executing supervisory duties – independently from any administrative, public and individual influences (article. 127).
Formal considerations alone, however, will not suffice to explain the potential significance of this government supervisory system; practical considerations are almost more important. Before the first draft of the Supervision Law of China was made public in July 2017 soliciting public opinions, the NPC decided in December 2016 that three pilot projects would be carried out in Beijing, Shanxi (located in Middle China), and Zhejiang (in South China), in the course of which three particular institutional arrangements were trialled:
- Incorporating the existing administrative supervisory organs and the discipline inspection committees of the CPC in the supervisory commission that is responsible to the people’s congress at the corresponding level and to the supervision commission at the next higher level;
- The integrated commission has the power to not only oversee the act of public functionaries, which refers to those personnel who perform public duties and whose wages and welfare are borne by the State public finance, but also investigate illegal or criminal offences of public functionaries such as suspected corruption, bribery, rent-seeking, and siphoning benefits;
- In the case where the work of the supervisory commission conflicts with that of the administrative or procuratorial bodies, the application of the Administrative Supervision Law of China (where the mandate of the administrative supervision was from) and the clauses concerning criminal investigation by the People’s Procuratorate in the Criminal Procedure Law of China may be suspended until the investigation by the supervisory commission is concluded.
As regards the first trial on the institutional formation, the supervisory organ will be an integration of former administrative and political supervisory bodies, as stipulated in the Supervision Law of China adopted on 20 March by the NPC. Head of the SSC will be elected by and responsible to the NPC (article 8), which makes a difference to its institutional power in relation to other government branches.
At the practical level, prior to the creation of the supervisory commission, the oversight and investigation of the culpability of public functionaries were mostly performed by internal mechanisms within the administrative branch. The Ministry of Supervision (instituted in 1993) and the National Bureau of Corruption Prevention (instituted in 2007), two very important mechanisms, were under the direct administration of the State Council. It means that the head of the government supervisory organ was responsible to the Premier (the head of the State Council), which rendered the government supervisory bodies structurally subordinate to the administrative ones.
In light of the insufficient oversight of public functionaries and the expanding government actions for combating corruption (extended to the national scale in 2013), the Central Committee of the CPC adopted a resolution proposing an extra-administrative supervisory body, the operation of which would be independent from the government’s administrative power. That would require amending the Constitution as the government was formally structured into four branches of the administrative, adjudicatory, procuratorial and military, with no legitimate space for a separate supervisory branch.
As to the second trial on the institutional power, in the first eight months of the pilot, according to the State news agency Xinhua, supervision commissions detained a total of 183 public functionaries in the three pilot areas during their investigations, and expanded their oversight to 0.7 million public functionaries in Zhejiang, nearly a million in Beijing, and 1.3 million in Shanxi. The extensive mandate of the supervision commission is legalised by the Supervision Law of China enacted shortly after the NPC adopted the constitutional amendments. Its mandate ranges from investigatory to interrogatory to detention powers, after being reviewed and approved by the competent supervision organ (articles 18-22).
When China’s constitutional amendments were made, I resumed the interminable discussions of China’s contemporary institutional reforms with Chinese colleagues at Utrecht Law School. I think of the formation of China’s current governance as an experimental one. Before disbanding the former revolutionary governance system nationally, the government allowed three counties to practice de-collectivist reform projects, with a view to seeing whether they were more functional than the adherent of then centrally planned governance.
History presents much similarity as far as the formalisation of the national supervisory system is concerned. I hope that this blog has provided helpful information for making sense of why the amendment to the President’s term limit is practically unimportant whereas the newly instituted supervisory commissions and their potentialities to improve China’s administrative justice deserve much more attention.